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2004 DIGILAW 127 (GAU)

Lutfar Ramman v. Abdul Jalil

2004-02-20

P.G.AGARWAL

body2004
JUDGMENT P.G. Agarwal, J. 1. The appellants/plaintiffs instituted Title Suit No. 58/89 and the said suit was dismissed by the trial court, whereupon the appellants preferred Title Appeal No. 29/96 before the Civil Judge, (Senior Division) but no relief was granted and hence the present appeal. Title Suit No. 58/89 was in respect of 3 bighas of land out of 7 bighas 1, kathas 13, lechas of land situated at village Jahorpum under Ghilazari mouza and covered by Dag No. 595 and KP patta No. 142 (hereinafter referred to as the suit land). 2. The case of the plaintiff is that one Md. Munir Uddin Munsi was the original owner of the land, and sold 5 bighas of land to one Bhagawan Das and the said Bhagawan Das sold the suit land measuring 3 bighas to the father of the plaintiff namely Daulat Khan by registered sale deed No. 7286 of 1978. The plaintiffs obtained mutation over the suit land but subsequently it was cancelled. The plaintiffs thereafter filed the suit for declaration of right, title and confirmation of possession and also for issuance of precept for mutation. 3. The respondents/defendants contested the suit raising the usual pleas. The defendants denied the alleged sale in favour of the plaintiffs by Munir Uddin. The defendants also filed counted claim stating that the plaintiffs have forcibly occupied the suit land on 11.12.86 and accordingly the defendants prayed for declaration of right, title and recovery of khas possession and also for cancellation of the sale deed No. 7286 of 1978. 4. The trial court framed as many as 10 issues. The suit was once decreed in favour of the plaintiff by judgment and order 27.9.93 but in Title Appeal No. 1/94 the said decree was set aside and the matter was remanded, back whereupon vide judgment dated 27.8.96 the trial court disposed of the suit at below: - "Considering the decision of the issue No. 10, the suit of the plaintiffs are hereby dismissed on contest and the counter-claim suit of the defence suit is hereby decreed on contest and with cost. The defence side is entitled to get the following reliefs : 1. The defence side is entitled to get the following reliefs : 1. The right, title, interest are hereby declared in favour of the defendants in respect of the land measuring an area of 5 B.S. under Dag No. 595 covered, by the patta No. 142 (P) of village Jahorpum as scheduled in the counter clams. 2. It is hereby declared that the sale deed being Nos. 5742/72, 6883/74 and 7286/78 have no values in the eye of law and the same is liable to be cancelled as its executants had no right to execute the same said Precepts be sent to that effect to the concerned authority. 3. It is hereby declared that the defendants are entitled to get the khas possession of the lands scheduled in the counter claim from the plaintiffs and the pro forma defendants by dismantling the houses of the concerned parties thereon and by evicting them therefrom. 4. The cost of the suit. With the above relief's, the case is disposed of on content." 5. The appellate court vide impugned order dismissed the appeal and affirmed the judgment and decree passed by the trial court. 6. At the time of admission of the appeal, the following substantial questions of law were formulated:- (i) That whether the courts below in interpreting the plaintiffs document, i.e., exts. 1, 2 and 3 arrived at a finding, which is perverse? (ii) That whether the counter claims, could have been filed at the facts and circumstances of the case. 7. The defendants before us are the heirs of late Munir Uddin Munsi and they have denied the alleged sale in favour of Bhagawan Das/Daulat Khan. The plaintiffs have produced Ext. 1 a certified copy of Jamabandi, ext. 2 a certified copy of sale deed 5742/73 to show that Munir Uddin had sold 2 bighas of land to Daulat Khan. In the plaint it was stated that late Munir uddin had executed two sale deeds No. 5742/72 and 6883/74 in favour of Bhagawan Das. But surprisingly enough the plaintiffs did no produce copy of sale deed No. 6883/74. The sale deed No. 5742/72 is in respect of only 2 bighas of land. The plaintiffs has examined Bhagawan Das PW 3 wherein he had merely stated that he has purchased 5 bighas of land from Munir Uddin about 17 years back by registered sale deed. But surprisingly enough the plaintiffs did no produce copy of sale deed No. 6883/74. The sale deed No. 5742/72 is in respect of only 2 bighas of land. The plaintiffs has examined Bhagawan Das PW 3 wherein he had merely stated that he has purchased 5 bighas of land from Munir Uddin about 17 years back by registered sale deed. Besides the above cryptic statement the alleged purchaser Bhagawan Das PW 3 has not stated anything or produced any documents in support of his alleged purchase of 5 bighas of land from Munir Uddin. He has also not stated anything about Ext. 2 even. The plaintiffs in this case have claimed their title through Bhagawan Das. There is ho dispute that the land originally belonged to Munir Uddin, the predecessor in interest of the defendants. Hence in order to succeed the plaintiff must establish that Bhagawan Das had acquired right, title over 5 bighas of land by way of purchase as claimed by him. Ext. 2 is in respect of only 2 bighas, of land, whereas, as stated above there is no documents whatsoever in respect of the remaining 3 bighas of land as claimed by the plaintiff. Bhagawan Das remained silent on this important aspect of the matter and he has not spoken any thing as to what happened to his sale deed(s). 8. The learned counsel for the plaintiffs has submitted the certified copies of sale deeds are admissible in evidence and in support of his statement; he has relied on a decision, of this court in the case of Md. Saimuddin Sheikh v. Abejuddin Sheikh AIR 1979 Gawhati 14 wherein it was held that a certified copy of sale deed is admissible in evidence. 9. The learned counsel for the respondents/defendants has not disputed the admissibility of Ext. 2. 10. At this stage, we may refer to the following observations of this court in the case of Mahindra Kumar Dey v. Mahendra Sukla Baidya (1999) 2 GLR 219 wherein this court observed : "15. While holding that a certified copy of sale deed is admissible in evidence, it should be borne in mind that there is difference in admissibility and probative value of documents. Admissibility of a document is one thing and its probative value quite another. These two things cannot be combined. A document may be admissible and yet may not carry weight. While holding that a certified copy of sale deed is admissible in evidence, it should be borne in mind that there is difference in admissibility and probative value of documents. Admissibility of a document is one thing and its probative value quite another. These two things cannot be combined. A document may be admissible and yet may not carry weight. A proof of document is something which is independent from the evidentiary value of the document State of Bihar v. R.K. Singh 1981 Bom 446 Z Sorabjee v. Murabelle Hotel). There may be situation where the execution, of a sale deed may be denied by the vendor, or heirs or by someone who steps in his shoes, in such a situation the execution must be proved as required under Section 67 of the Evidence Act, mere production of the certified copy of sale deed will not be sufficient." 11. In the present case, as stated above, PW 3 Bhagawan Das has not stated a single word as to what happened to the original sale deed and as to why secondary evidence is required to be adduced. He has also not stated which land he purchased by which sale deed. The trial court as well as appellate court therefore, rightly held that ext. 2 cannot be considered as the source of title in favour of the plaintiffs. 12. There is another aspect of the matter also. PW 3 Bhagawan Das the alleged purchaser has categorically admitted that after the alleged sale possession of the land was not handed over to him and the vendor Munir Uddin used to possess the land and he gave usufructs for few years and then stopped giving anything. PW 3 also does not say that he handed over the possession of the suit land, to the plaintiff Daulat Khan and whether Daulat Khan possessed the suit land or not at any point of time. He does not know, as he never handed over possession to Daulat Khan. 13. In view of the evidence as stated above, we hold that both the courts below had appreciated Ext. 1, 2 and 3 in proper perspective and the finding is not adverse. The substantial question No. 1 is answered against the appellants/plaintiffs. 14. As regards the second question, the trial court held that the counter claim is not barred by limitation. In view of the evidence as stated above, we hold that both the courts below had appreciated Ext. 1, 2 and 3 in proper perspective and the finding is not adverse. The substantial question No. 1 is answered against the appellants/plaintiffs. 14. As regards the second question, the trial court held that the counter claim is not barred by limitation. The appellate court however, did not consider the above matter specifically. 15. Mr. Ahmed has, however, submitted that, the period of limitation was three years. 16. The period of limitation is three years in respect of cancellation of sale deeds only. So far recovery of possession is concerned, it is 12 years under Article 64 of the Limitation Act. There is no dispute at the Bar that the counter claim must be within limitation as held by this court in the case of AW Figgis & Co. Pvt. Ltd. v. Barduar Tea & Timber Co. Ltd.(1992) 1 GLJ 56. 17. So far the defendants' prayer for declaration of right, title is concerned, the counter claim was within limitation and as such we do not find any material for interference. 18. In view of the above, the second appeal has got no merit and it is accordingly dismissed with cost.